Legal case studies

The circumstances: Menow had a history of becoming drunk and obnoxious at the defendants hotel. He had previously been banned. After the ban was lifted, the hotel employees were instructed not to serve Menow unless he was accompanied by a responsible person. On the night of the accident, Menow arrived with two other people, both of whom who left early. From 7:00 p.m. to 10:00 p.m. Menow drank alone, becoming visibly intoxicated. When he bothered other patrons, staff ejected him. Menow was given a ride part of the way home and continued on foot, staggering along the highway, where he was hit by a car. Menow sued both the driver and the hotel. He claimed that the hotel had an obligation to take reasonable care to protect him, in his intoxicated condition, from personal injury.

The decision: The Supreme Court of Canada unanimously held the hotel liable. Jordan House staff had special knowledge of Menows lack of responsibility when impaired, had violated provincial law in serving him when he was intoxicated, and had ejected him while knowing he had no safe way of getting home. The court concluded that the hotels staff should have taken steps to protect Menow. Options included allowing him to spend the night in one of their rooms, calling the police, or arranging safe transport home. Menow, the hotel and the driver were each held one-third at fault. In this landmark decision, the Supreme Court of Canada recognized that a licensed establishment owes a duty to protect intoxicated persons from injuries they may suffer after leaving the premises.

The circumstances: Billings was served one beer at the Oasis Tavern but was refused further service because of obvious signs of intoxication. He refused efforts of Oasis staff to have him take a taxi and instead drove away in his own vehicle. He proceeded to the Ship and Shore Hotel, where he was served in spite of his obvious intoxication. After leaving the Ship and Shore, Billings drove his motor vehicle on the wrong side of the road and collided with a vehicle, injuring the plaintiffs and killing their mother.

The plaintiffs sued Billings, the Oasis and the Ship and Shore. The court held that the staff of the Oasis had a positive duty to call police since they knew Billings was driving in an intoxicated state. However, there was no liability for Oasis, because the court was not satisfied that calling the police would have affected the outcome. Ship and Shore, however, was liable. Not only did staff there continue serving Billings when he was clearly intoxicated, but they failed to take steps to see that he did not drive away from the premises.

The decision: The duty of care established by the Supreme Court of Canada in Jordan House v. Menow has been extended by the courts to include a duty to protect innocent third parties from harm inflicted by an intoxicated patron who leaves the premises. The most common scenario that arises is when an intoxicated patron drives from the premises and causes an accident.

The lesson: The duty to take reasonable steps to prevent harm from over-service of alcohol extends not just to the person being served but to the public at large — and in particular, other users of the road.

The case: Donaldson v. John Doe (2009, B.C. Court of Appeal)

The circumstances: Donaldson and the defendant Briggs attended an Oktoberfest event at the Commodore. The Commodore gave patrons of the event glass beer mugs as a souvenir. Donaldson left the Commodore with his friends at the end of the event. As Donaldson walked along Granville Street, he was struck in the face with a glass mug wielded by Briggs.

The decision: The lawsuit was dismissed because the plaintiff did not adduce the necessary evidence to prove his claim against the patron or the licensee. However, the court confirmed the basic principle that an establishment has a duty to protect third parties from harm caused by intoxicated patrons and found that such a duty existed in these circumstances.

The lesson: The licensee's duty is not restricted to the protection of third parties from intoxicated patrons who may injure them through the use of motor vehicles. Rather, it encompasses other harm that may be occasioned by intoxicated patrons after they leave the premises.

The circumstances: Coyle was drinking with some friends at a bar. The group left together and were picked up by another friend and taken to Coyles home. At her home, Coyle got the keys to a vehicle, went driving and was involved in an accident.

The decision: The court held that there was no link between any breach by the licensee of its duty of care and the subsequent accident. The licensee’s duty was to take reasonable steps to see that Coyle got home safely, which she did. What happened after that could not be the responsibility of the licensee.

The lesson: The lesson to take from this case is, generally, even if a person is over-served the duty to that person and to the public ends once that person manages to get home safely.

Caution:the law is not completely clear on this issue as the case below demonstrates.

The case: Holton v. McKinnon (2005, B.C. Supreme Court)

The circumstances: Holton, McKinnon and another friend drank at Holton’s home. They then drove to two establishments where they continued drinking and drove back to Holton’s home. Then the three decided to drive to a party and were involved in a car accident where Holton sustained serious injuries.

The decision: Because McKinnon never arrived safely at his own home, the duty owed by the two licensees to those who might be harmed by McKinnon’s driving (including his passenger, Holton) did not end.

The lesson: If a person becomes intoxicated at your establishment, or an intoxicated person enters your establishment and you continue to serve that person alcohol, you are exposed to liability if that person causes harm to him or herself or to members of the public. That exposure may not end until that person gets home or to some safe place where they can sober up.

The case: Picka v. Porter and the Royal Canadian Legion (1980, Ontario Court of Appeal)

The circumstances: Porter ran a stop sign and hit the plaintiff’s car, killing three people and injuring two others. Based on his blood alcohol level, it was established that Porter had consumed approximately 10 bottles of beer over a five-hour period at the Legion. The beer was served from behind a partition, in circumstances in which the bartender could not observe the patrons’ condition or determine how much alcohol any patron had consumed. The plaintiffs sued both Porter and the Legion.

The Legion contended that since the bartender was unaware of Porters intoxicated condition, it could not be held liable. The court rejected this argument, concluding that a licensee could not absolve itself of liability by adopting serving practices that made it difficult to determine a patrons sobriety. The Legion was held liable even though the bartender had no actual knowledge of his intoxication and had not ejected him.

The decision: Porter was held 85% at fault and the Legion was held 15% at fault.

The lesson: A licensee must conduct its business in a way that allows it to monitor its patrons’ consumption and behaviour so that the licensee knows when to suspend service and/or make arrangements to get an at-risk patron home safely.

The circumstances: The licensee significantly over-served a group of patrons, who left at closing time, very intoxicated. The bar asked for the keys of the defendant, Foster, but he told them hed given them to someone else. Staff did not ask the other patrons for their keys. They assisted one of the patrons in calling a taxi. The group left the bar but did not get in the taxi. Instead, they got into Fosters car and were involved in a motor vehicle accident.

The decision: The licensee was liable for over-serving the patrons to the point where they were obviously intoxicated and then not ensuring that they got in a taxi. Because the patrons were the last customers to leave for the night, it would not have been onerous for the staff to take the patrons keys and/or follow them outside to see that they got into a taxi.

The lesson: The degree of over-service will increase the burden on the licensee to ensure that no harm results. If a licensee permits a patron to become extremely intoxicated then the court may hold the licensee to a higher standard in deciding whether it did enough to prevent the patron from driving.

The percentage of fault attributed to a commercial liquor establishment varies widely depending on the circumstances. In the majority of cases, blame apportioned to the licensee ranges from 5% to 25%. However, the courts are becoming increasingly willing to apportion a higher degree of fault to commercial liquor providers who do not meet their duty of care to patrons and the public.

The case: Lum v. McLintock (1997, B.C. Supreme Court)

The circumstances: A patron spent an afternoon at the bar of a golf club where he was a regular customer. He became very intoxicated. The server knew the patron, knew that he was driving, knew that he was intoxicated and even walked him out to his car. The patron drove off and hit a cyclist causing serious injuries.

The decision: The conduct of the server was found to have been exceptionally negligent and the licensee was apportioned 30% of the blame (with the 60% to the patron and 10% to the plaintiff cyclist).

The case: Laface v. McWilliams (2005, B.C. Supreme Court)

The circumstances: A group of patrons were drinking in a pub, and one of the group was going to drive away in an intoxicated state. One of his associates tried to persuade him not to drive, but to no avail. The staff of the pub were alerted to the situation but did nothing. The intoxicated patron drove away from the premises and into a crowd of pedestrians gathered on or near the roadway.

The decision: The pub was found to be 50% liable. It had 'flagrantly ignored its responsibilities as a commercial host.' The court was animated by the fact that the pub security staff were notified by another patron that the defendant intended to drive, and they had failed to take any steps to intervene. The patron driver was also held 50% responsible.

The case: Francescucci v. Gilker (1996, Ontario Court of Appeal)

The circumstances: A patron had become extremely intoxicated at a restaurant. Staff members picked him up, carried him out to his car, put him in it, and threw the keys on his lap. He drove away a short while later and injured someone in an accident.

The decision: At trial, the jury apportioned 78% of the blame to the restaurant and 22% to the patron. The Court found that the restaurants conduct was deliberate and reckless.

The lesson: The lesson to take from these cases is that the poorer the job a licensee does of living up to its duty to prevent harm resulting from over-service, the greater the percentage of fault that will be assigned to the licensee in the event someone is injured.

The case: Hansen v. Sulyma (2013, B.C. Court of Appeal)

The circumstances: Over 4-5 hours at the tavern, the
driver ran up a tab in excess of $100 (including some
drinks purchased for others). It did not include food.
He consumed more than 6 double rye drinks over that
time and his BAC was 147-167 mg% at the time of the
accident and a patron offered to pay for a room for the
driver, indicating obvious signs of impairment. The
driver left the pub and collided with another vehicle
that had run out of gas and had pulled over to the side
of a dark rural road without activating its flashers. A
passenger in that vehicle was severely injured.

The decision: Taking into account the relative
blameworthiness of the defendants, 20% of the fault
was apportioned to the tavern, 70% to the intoxicated
driver, and 10% to the driver of the parked vehicle.

The lesson: While each case of commercial host
negligence must be assessed on its particular facts,
this decision indicates that the fault apportioned to
commercial hosts, even in the face of aggravating
factors and significant over service, most typically falls in the range of 20%, and that the majority of fault
will be apportioned to the intoxicated driver. That
said, licensees would do well to remember that if an
intoxicated driver is underinsured, the licensee could
well be required to pay more that its proportionate
share to make up the difference.

The circumstances: An intoxicated patron fell over a low railing on a high staircase and was seriously injured. The railing was lower than what was called for in the applicable building bylaw. The P.N.E. argued that there had been no previous problems with the railings and that the accident was due solely to the plaintiffs self-induced intoxication.

The decision: The P.N.E. was liable. The court found that the low railing was more dangerous than no railing at all because it could cause a trip and a head-first fall. The P.N.E. had to anticipate that many of its attendees would be careless because of the festive atmosphere and some could be expected to be drinking. In holding the P.N.E. liable, the court emphasized that the premises had to be reasonably safe for not only the sober but also for the intoxicated.

The lesson: The duty to prevent harm from over-service of alcohol is combined with a duty to make the premises reasonably safe for members of the public that will be entering those premises. Conditions that might not be a hazard to a well balanced, sober person may indeed pose a hazard to someone who has had too much to drink.

The circumstances: The Kinsmen held a beer party in an arena. Several uninhibited patrons entertained the crowd by climbing the beams that supported the roof. One of the partiers fell from the beam onto the plaintiff. The daredevil emerged unscathed and immediately left the arena. The plaintiff, who was seriously injured, sued the Kinsmen Club under the British Columbia Occupiers Liability Act.

The decision: The court decided that the first two incidents of beam climbing were sufficient to warn the defendant of the hazards posed by the activity. By the time the plaintiff was injured, there was a duty on the defendant to “take steps to prohibit or prevent recurrences of beam climbing.” In failing to take such action, the staff breached their obligations under the Act, which says that an occupier may be held liable for permitting activities on the premises that pose a foreseeable risk of injury.

The circumstances: A patron of a ski resort who had entered a tubing race was seriously injured in an accident on the hill. The patron had consumed a large amount of his own alcohol on the day of the race and was also served several drinks by the resort while wearing markings that identified him as a contestant. The patron was visibly drunk at the time of the race. The manager of the resort suggested to the patron that he not take part in the race due to his condition. The patron insisted, however, and the manager made no further efforts to stop him.

The decision: The resort had set up an inherently dangerous competition during which it served alcohol. That triggered a special relationship between itself and its guests. This relationship gave rise to a duty to take all reasonable steps to ensure that no one participate while intoxicated.

The lesson: The lesson to take from these cases is that a licensee must take care to see that conduct on the premises does not result in harm to patrons. The service of alcohol may cause some patrons to behave in a reckless manner (such as in the Kinsmen case). In those cases, the licensees duty is to prevent reckless activity where it could reasonably bring harm to patrons. With respect to activities organized by the licensee, care must be taken to see that such activities are not hazardous or, if they carry some risk of injury that intoxicated patrons are not allowed to participate.

The circumstances: A guest was injured in an unprovoked assault by an intoxicated female patron who had earlier been confrontational toward the guest and her group of friends. The plaintiff had asked the bar staff to eject the offending drinker, or at least to stop serving her alcohol. The staff continued service in spite of the patrons intoxication and her aggressive behaviour.

The decision: The bar was found to have breached its duty of care to the plaintiff and was found liable for the plaintiffs injuries.

The case: Petersen v. Stadnyk (2003, B.C. Supreme Court)

The circumstances: A regular patron with no known propensity for violence assaulted a regular patron at a licensed restaurant. Both patrons had been at the restaurant - which featured a live band and a prominent bar - for several hours before the incident occurred.

The decision: The court held that the act of violence was not foreseeable and that the defendant restaurant was not liable. The court also held that the standard of care of a pub or bar would ordinarily be higher than for a restaurant, because the risk of violence at a liquor-primary establishment is generally greater.

The lesson: Where a patrons conduct indicates that he or she is likely to do harm to someone else, the licensees duty is to see that the patron is removed from the premises as soon as possible. If the licensee fails to do that and the patron becomes violent, the licensee may be liable for the injuries inflicted. On the other hand, if a patron suddenly becomes violent and there were no warning signs that this was about to occur, the licensee will probably not be liable for the injuries of other patrons.

The case: Hartley v. RCM Management Ltd. (2010, B.C. Supreme Court)

The circumstances: The plaintiff was at a nightclub
and one of his friends accidently bumped into another
patron. The two then began to push and yell at each other
in a forceful and aggressive manner. This behaviour
went on for at least two minutes. The plaintiff's friend
was eventually struck by a bottle so the plaintiff
intervened to assist his friend. The plaintiff was then
struck and injured by another unidentified patron.

The decision: The court held that because an altercation
involving yelling and forceful pushing was underway
for more than two minutes before the plaintiff was
injured, the nightclub staff should have been aware that
an outbreak of violence was likely. The failure of the
security staff to intervene and break up the altercation
before it escalated was a breach of the nightclub's
obligations under the Occupiers' Liability Act.

The lesson: If a commercial host has reason to believe
that an assault is imminent or that a fight is underway,
then there is a general obligation to take reasonable
steps to intervene and prevent harm to patrons.
However, some courts have noted that bar staff are not
obliged to risk injury to themselves by attempting to
break up a fight that has gone out of control.

The circumstances: A bar employee heard the sound of breaking glass in the parking lot and approached the plaintiff to see whether he had stolen a mug. According to the written policy of the bar, the employees duties included ensuring that patrons did not take glasses or drinks out of the bar. The employee lost control and viciously assaulted the patron. The patron sued the bar, claiming that the bar was vicariously liable for the employees conduct.

The decision: The court found the bar liable on the basis that, in initially approaching the patron, the employee was discharging his duties as an employee. Therefore, the beating that followed was within the scope of the employees duties, and the bar was therefore responsible for them. In short, when an employee uses more force than is necessary in ejecting or controlling the activities of a patron, both the employee and the establishment may be held liable.

The lesson: It may be necessary at times to physically remove patrons from the premises or physically intervene to prevent patrons from injuring each other. However, when an employee uses more force than is necessary in ejecting or controlling the activities of a patron, both the employee and the establishment may be held liable.

The case: Montgomery v. Black (1989, B.C. Supreme Court)

The circumstances: A bar patron, who was known
by staff to be a doorman at another club, closely
observed bar staff eject the plaintiff from the
premises. The patron then actively participated in
securing the doors to prevent the plaintiff from reentering.
When the plaintiff tried to come back in,
the staff and the patron beat him. The bar manager
had watched the entire event unfold and was aware
of what was happening.

The decision: The court held that the patron
had unjustifiably inserted himself into the bar's
operation by assisting in the plaintiff's ejection.
The plaintiff's injury at the hands of the patron
occurred with the bar's full knowledge and
acquiescence and therefore, the bar was liable for
the patron's actions.

The lesson: If bar staff allow a patron to become
involved in a forcible ejection, the bar will likely
be responsible for the conduct of that patron.
However, a bar will not be liable for injuries caused
by a volunteer patron who acts, without warning,
to stop an assault, and who uses only reasonable
force in the process.